MATTER OF HUGHES v. SUFFOLK COUNTY DEPT. OF CIV. SERV., 74 N.Y.2d 833 (1989)

545 N.E.2d 631, 546 N.Y.S.2d 341

In the Matter of JESSE R. HUGHES, Respondent, v. SUFFOLK COUNTY DEPARTMENT OF CIVIL SERVICE, Respondent, and TOWN OF RIVERHEAD, Appellant.

Court of Appeals of the State of New York.
Decided September 19, 1989

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, William L. Underwood, Jr., J.

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Pierre G. Lundberg for appellant.

E. Thomas Boyle, County Attorney (Caroline Levy of counsel), for Suffolk County Department of Civil Service, respondent.

Reynold A. Mauro for Jesse R. Hughes, respondent.

MEMORANDUM.

The order of the Appellate Division should be reversed and respondent’s determination reinstated.

An administrative hearing must be conducted by an unbiased Hearing Officer (see, People ex rel. Packwood v Riley, 232 N.Y. 283, 286). To establish Hearing Officer bias as a matter of fact, there must be support in the record for the bias and proof that the outcome flowed from the alleged bias (see, Matter of Warder v Board of Regents, 53 N.Y.2d 186, 197). Here, petitioner’s only “evidence” claiming bias is an unsworn memorandum asserting that the Hearing Officer was allegedly respondent’s employee. This is insufficient under Warder (supra). Lastly, to the extent petitioner now argues that the Hearing Officer’s appointment violated Civil Service Law § 72, as amended, this claim does not provide a basis for relief because it was not raised or relied upon at the agency level (see, Matter of Klapak v Blum, 65 N.Y.2d 670, 672; Matter of Seitelman v Lavine, 36 N.Y.2d 165, 170).

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed,

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with costs, and respondent’s determination reinstated in a memorandum. [See, 74 N.Y.2d 942.]